Opinion
No. CV 055001223S
March 12, 2008
MEMORANDUM OF DECISION RE ACTION IN DAMAGES
I STATEMENT OF CASE
This is a negligence action brought by Richard Thomes and Patricia Mitchell, co-administrators of the estate of Brian C. Thomes, against the defendants, Hartford police department officers Tuyen Duong and Matthew Rivera and the city of Hartford, for damages resulting from the death of Brian C. Thomes (the plaintiffs' decedent) while in the custody of the state of Connecticut. This action is brought pursuant to General Statutes §§ 7-465 and 52-557n.
In the complaint, the plaintiffs allege the following relevant facts: (A) The defendants had a duty to communicate suicide information regarding the plaintiffs' decedent. Specifically, the defendants had (1) a duty of ordinary care to communicate suicide information within the police department and to others and (2) a duty pursuant to policy to communicate suicide information within the police department and to others. The plaintiffs further allege that (B) the defendants breached their duty to communicate suicide information within the police department and to the judicial marshals. Specifically, (1) Officer Duong, as a member of the Hartford police department, breached her duty to inform Officer Rivera, and/or the booking division and to complete a field arrest form; (2) Sergeant Peter Bergenholtz, as a member of the Hartford police department, breached his duty to inform Officer Rivera, and/or the booking division and to complete a field arrest form; (3) Sergeant Martin and/or Officer Rivera, as members of the Hartford police department, breached their duty to convey information to the booking division about the suicide risk of the plaintiffs' decedent. Finally, the plaintiffs allege that (C) the breach of the duty of care by the defendants was a substantial factor in bringing about the death of the plaintiffs' decedent. The plaintiffs allege that governmental immunity does not apply because the defendants violated their ministerial duty. The plaintiffs seek damages.
The defendants allege the following special defenses: (A) They are not liable because any injury to plaintiffs was caused by the acts or omissions of others, i.e., the judicial marshals, in that they negligently caused, allowed or permitted the death of the plaintiffs' decedent by failing to establish, implement and/or follow proper and adequate suicide-prevention precautions; and/or by failing to properly and adequately communicate about the plaintiffs' decedent with those who transferred custody of him to them, and (B) they are not liable because the alleged acts or omissions, the arrest of the plaintiffs' decedent and his transport to the booking facility, required the exercise of judgment or discretion. The defendants further contend that (A) Officer Duong owed no duty of care to the plaintiffs' decedent. In support of this argument, they maintain that (1) based on the circumstances of this case, Officer Duong did not know or should not have known that the plaintiffs' decedent's suicide would result from her failure to act, and (2) public policy should not be extended to this particular plaintiff or to these particular circumstances. The defendants also argue that (B) the defendant Rivera owed no duty of care to the plaintiffs' decedent; (C) the defendant city of Hartford owed no duty to the plaintiffs' decedent; and (D) the defendants' actions were not a proximate cause of the death of the plaintiffs' decedent. The defendants further maintain that (E) the defendants are entitled to governmental immunity for the following reasons: (1) If the defendants owed any duties to the plaintiffs' decedent, such duties were discretionary; (2) the plaintiffs' decedent was not an identifiable person subject to imminent harm; and (3) it was not apparent to the defendants that their conduct was likely to subject him to such harm. The defendants also argue that (F) the plaintiffs' claim under General Statutes § 7-465 in the third count must fail as no individual defendants are liable for the plaintiffs' injuries, and that (G) the court should not award damages to the plaintiffs.
The case was tried to the court on November 7, 8 and 9, 2007. The last post-trial brief was filed on January 25, 2008.
II FINDINGS OF FACT
The parties have stipulated to certain facts which have been adopted by the court in deciding the case. The court has made additional findings of fact within the scope of the issues presented to it for trial.
"A formal stipulation of facts by the parties to an action constitutes a mutual judicial admission and under ordinary circumstances should be adopted by the court in deciding the case . . . A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified." (Citation omitted; internal quotation marks omitted.) Cantonbury Heights Condominium Ass'n., Inc. v. Local Land Development LLC, 273 Conn. 724, 745, 873 A.2d 898 (2005). "We shall approach the question before us upon the basis of the facts stipulated and the finding of additional facts by the court within the scope of the issue presented to it for trial." (Citation omitted.) Central Coat, Apron Linen Service, Inc. v. Indemnity Ins. Co., 136 Conn. 234, 236, 70 A.2d 126 (1949).
See Cantonbury Heights Condominium Ass'n., Inc. v. Local Land Development, LLC, supra, 273 Conn. 745; Central Coat, Apron Linen Service, Inc. v. Indemnity Ins. Co., supra, 136 Conn. 236.
The plaintiffs, Richard Thomes and Patricia Mitchell, are the parents of the decedent, Brian Thomes. On July 26, 2004, they were appointed co-administrators of his estate by the East Windsor Probate Court. Patricia Mitchell and Richard Thomes were married in 1972 and had two children: the decedent and his younger brother, Steven Thomes. The family resided in South Windsor where the children attended school. Richard Thomes spent most of his career in insurance sales. Patricia Mitchell stayed home while the children were young. In 1995, she went to work for Traveler's Insurance Company. Brian Thomes' parents were divorced in 2000. Patricia Mitchell moved to Florida a few years later and now works for Lincoln Financial. Richard Thomes continues to reside in Connecticut.
The plaintiffs' decedent, Brian Thomes, was born on June 16, 1978. His parents have described him as being bright and introverted. He had difficulties at school almost from the beginning. Testing revealed that he was a bright child with attention deficit issues. He had problems fitting in at school and being mainstreamed with the other students. Although he underwent years of counseling, he did not make any significant progress with these problems. His parents tried to be as supportive as possible. He was close with his younger brother when they were growing up, but they grew apart as they got older. Both parents remember Brian Thomes' love for the outdoors. He especially liked to go fishing with his father.
When Brian Thomes was sixteen, he was not allowed to continue at South Windsor High School. He then enrolled in a transitional school, which he quit before graduating. He never earned a high school diploma or a GED.
After leaving school, Brian Thomes experienced many difficulties in his life. He started abusing alcohol, cocaine and heroin. His parents tried to help him to obtain substance abuse treatment. For a period of time, his father took him to a methadone clinic in Hartford. The treatment did not prove to be successful. Brian Thomes was unable to maintain regular employment due to his substance abuse. He also struggled with mental health issues, including anxiety, depression and bipolar disorder. He was treated at Blue Hills Hospital, Cedarcrest Hospital and the Institute of Living. Adding to his difficulties, Brian Thomes was arrested several times and spent time in jail. His living situation was unstable for several years. He lived on and off with one of his parents but was kicked out for substance abuse. At one point, his father paid the rent for a year for an apartment in East Hartford. When the lease expired, Brian Thomes was asked to leave because he was causing too many problems with the other tenants. His whereabouts were unknown for significant periods of time. In the months prior to his death, Brian Thomes was not living with his parents.
Over the years, Brian Thomes' parents supported him as much as possible, hoping to see some progress. In April 2004, Brian wrote a letter to his father apologizing for his past actions and expressing a desire to turn his life around.
On May 9, 2004 at 12:44 a.m., Brian Thomes was found in an unresponsive state on Westland Street in the North End of Hartford. The ambulance note indicates that Brian Thomes was confused and that he stated that his "life was over" and that he "took a lot of drugs." He was taken to Saint Francis Hospital as a result of his condition. En route to Saint Francis Hospital, he became aggressive and hostile.
Blood work done on Brian Thomes at the Saint Francis Hospital emergency room showed the presence of benzodiazepine, cocaine and opiates. The ingestion of benzodiazepine is listed as an example of a "suicidal gesture" according to the training materials of the Hartford police department. The training materials also include information regarding risk factors for suicide. Saint Francis Hospital personnel were aware of Brian Thomes' past medical history which included anxiety, depression, attention deficit disorder, delusions and post-traumatic stress disorder.
At Saint Francis Hospital, Brian Thomes demonstrated increasingly aggressive and abusive behaviors, including thrashing, yelling, using foul and offensive language and threatening to kill staff. This behavior required the use of restraints. Due to his behavior while in the emergency room at Saint Francis Hospital, Brian Thomes was tasered by an off-duty East Hartford police officer. The Hartford police department was called.
At approximately 1:30 a.m., Officer Duong responded to Saint Francis Hospital. Sergeant Bergenholtz, Officer Duong's supervisor, also responded to Saint Francis Hospital some time later. While at Saint Francis Hospital, Officer Duong spoke to EMS personnel who informed her that Brian Thomes had ingested drugs, and that "he wanted to kill himself." Officer Duong was also told by hospital staff that Brian Thomes would have to wait several hours for a psychiatrist in the morning since he expressed a desire to kill himself. She was also informed that he had been sedated by the doctor at the hospital and was on suicide watch. The evidence was unclear whether a seventy-two hour hold was placed on Brian Thomes while he was at Saint Francis Hospital. Sergeant Bergenholtz was also told by Saint Francis Hospital staff about the suicidal thoughts or statements made by Brian Thomes. Sergeant Bergenholtz had no reason to doubt the accuracy of hospital personnel that reported the suicidal threats made by Brian Thomes. During his stay, Brian Thomes disclosed to hospital personnel that he suffered from serious medical conditions. He was kept in restraints by staff at Saint Francis and remained asleep between 2:32 a.m. and 6:55 a.m.
Sergeant Bergenholtz testified that the Hartford police department was not going to make a custodial arrest when the plaintiff Brian Thomes was still receiving treatment at Saint Francis Hospital. When Officer Duong completed her shift, Brian Thomes was not under arrest and was not under Hartford police department custody. Officer Duong testified that she was not aware of any policies or procedures regarding a hospital informing an officer that an individual was a suicide risk, nor did she recall receiving any training about such an event.
Officer Duong went to her cruiser to prepare the arrest report. She completed her report at approximately 6:18 a.m. Sergeant Bergenholtz was still on duty. Three employees of the Hartford police department read and signed Officer Duong's police report which contained suicide information: Officer Duong, Sergeant Bergenholtz and Lieutenant Patrick Jobes. Brian Thomes was charged with assault, third degree, breach of peace and threatening, second degree. Officer Duong testified that all four copies of her arrest warrant were sent to the record division of the Hartford police department.
On May 9, 2004, at or about 6:55 a.m., Brian Thomes was yelling at Saint Francis Hospital staff and stated that he was going to attack and kill the staff for locking him up. He attempted to tip a hospital stretcher over at around 7:26 a.m.
Right after reporting for duty that morning, Officer Rivera was instructed by Sergeant Martin to go to Saint Francis Hospital to pick up Brian Thomes. Sergeant Martin told Officer Rivera what the charges were and the case number, but did not mention that Brian Thomes was suicidal. Officer Jenkins was also dispatched because there was a concern that Brian Thomes might be violent. Officer Rivera testified that he did not know if Sergeant Martin had Officer Duong's report available to him.
Before Officer Rivera was dispatched to Saint Francis Hospital, Officer Duong, Sergeant Bergenholtz and Lieutenant Jobes were aware that Brian Thomes had expressed a desire to kill himself. They also knew that Brian Thomes had been placed on a suicide watch at Saint Francis Hospital. Bergenholtz testified that Officer Duong had identified Brian Thomes as a suicide risk. Officer Duong was still at the Hartford police department when Officer Rivera came on duty on the morning of May 9, 2004. The policy of the Hartford police department that was taught in the police academy required communication of information between officers. The officer that applies for the warrant is supposed to communicate with the arresting officer about what the arresting officer will encounter. The policies, procedures and/or practices of the Hartford police department also required that any medical or suicide information known about an individual be relayed and shared with other officers. The practice of the Hartford police department was that whether by word of mouth or a note to the sergeant or to dispatch, Officer Doung's suicide information should have been made known to Officer Rivera. It was important to communicate this information because as the Hartford police department's suicide recognition training materials stated: "For mentally ill patients, the risk of suicide is greatest during the week after hospital admission." The Hartford police department's civil litigation officer, Ursula Wiebusch, testified that suicide information known to the officer applying for the warrant should have been conveyed to the arresting officer. Wiebusch testified that you would expect suicide information to travel through the chain and get to the arresting officer and to booking.
At approximately 7:15 a.m., Officer Rivera arrived at Saint Francis Hospital to take Brian Thomes into custody. When the officers arrived at Saint Francis Hospital, they were met by a nurse and were directed to Brian Thomes room. Saint Francis staff did not tell Officer Rivera the reasons for Brian Thomes' admission the night before. Officer Rivera did not ask Saint Francis staff any questions concerning Brian Thomes' condition or the reasons for Brian Thomes' admission the night before. Officer Rivera told Brian Thomes that they were there to escort him to jail and that they did not want any problems. Brian Thomes cooperated with the officers. At or about 7:30 a.m., Saint Francis Hospital discharged Brian Thomes to the Hartford police department, noting that his condition was satisfactory. There is no mention of a psychiatric evaluation being conducted or completed in the Saint Francis Hospital emergency room note prior to Brian Thomes' discharge into the custody of Officer Rivera. Brian Thomes was not under arrest and in Hartford police department custody until he was picked up by Officer Rivera.
The Hartford police department's civil litigation officer, Ursula Wiebusch, testified that the department has an obligation to protect those persons taken into custody and to provide them with the care they need. Sergeant Bergenholtz testified that the Hartford police department is responsible for people when they are in the department's custody. Sergeant Michael Fago testified that under standard operating procedure, the police have heightened responsibility when a person in custody has known suicidal tendencies.
After arresting Brian Thomes, Officer Rivera was required to complete a field arrest form. The field arrest form has been used by the Hartford police department for approximately twenty years. The field arrest form, also known as an "Arrest/Bail Register," is to be completed by the arresting officer and is used as a charging sheet and should include name, vital statistics, address, date of birth, race, sex, the date, time and location of the arrest, and a list of the charges. The field arrest form provides the booking division with information of which they should be aware. Information for completing the field arrest form can be derived from interviewing the arrestee and/or from police department sources.
The policies, procedures and/or practices of the Hartford police department required that the booking division is informed of violent tendencies, medical information and suicidal ideations. Lieutenant Jobes testified it was important that suicide information on a person in custody be provided to booking so that person does not harm himself. Hartford police department policies and procedures required inclusion of suicide information in the field arrest form to the extent it was known. Even suicidal tendencies that were evident in the past would be noted. The suicide information known to Officer Duong would typically be written in the remarks/comments Section of the field arrest form pursuant to proper procedures. Officer Rivera testified that he was trained that information as to suicide tendencies must be put in the remarks/comments section.
The field arrest form for the arrest of Brian Thomes on May 9, 2004 was completed by Officer Rivera. It contained no entries in the remarks/comments section or any mention of suicide. Officer Rivera was never informed that Brian Thomes was suicidal. He would have included the information in the field arrest form had he been told about Brian Thomes' suicide potential.
When Brian Thomes was brought to the booking division of the Hartford police department, the supervisor on duty was Sergeant Fago. It was part of the policies and procedures of the Hartford police department to fill out a "bright orange" "suicide form" when suicide information was known by the department. Sergeant Fago testified that the Hartford police department suicide form would be filled out at booking, and usually not by the arresting officer. The suicide form states: "The individual listed below has threatened or attempted to commit suicide while in the custody of Hartford police officers." While Brian Thomes never attempted to commit suicide or threatened to commit suicide in the custody of any Hartford police department employee on May 9, 2004, Officer Duong, Sergeant Bergenholz and Lieutenant Jobes were aware that Brian Thomes had earlier expressed a desire to kill himself. They also knew that Brian Thomes had been placed on a suicide watch at Saint Francis Hospital. None of these officers conveyed the suicide information to Officer Rivera or to booking.
The field arrest form is part of the paperwork given to the judicial marshals by the booking division of the Hartford police department to convey information when the judicial marshals pick up arrestees. Suicide information would be included in the remarks/comments section of the field arrest form and prominently noted with a "suicide stamp" on the field arrest form. It was the policy of the Hartford police department to give a suicide form to judicial marshal services when suicide information was known to the booking division. The suicide form would be given to the judicial marshals that pick up an arrestee to draw attention to the risk of suicide for an arrestee. No suicide form was completed by the booking division for Brian Thomes in this case.
At approximately 9:45 a.m., judicial marshal services picked up Brian Thomes at the Hartford police department and brought him to the lock-up facility at 101 Lafayette Street in Hartford. The judicial marshals responsible for transporting Brian Thomes were not given any information about Brian Thomes prior suicidal threats. Officer Rivera testified that the field arrest form would be the way for judicial marshal services to learn from the police department that a person was suicidal, unless the person actually vocalized it.
Brian Thomes arrived at the lock-up facility at 101 Lafayette Street at approximately 10:15 a.m. on May 9, 2004. Sometime after 4:00 p.m., Brian Thomes was moved from the "bullpen" area to a single unit cell designated E-9.
The policies and procedures of judicial marshal services provide that "Any prisoners who have been determined to be suicidal must be placed on a continuous watch, and such watch must be documented and initialed." Brian Thomes was not placed on continuous suicide watch by judicial marshal services but rather received the standard suicide watch for the general population that consisted of monitoring at 15 minute intervals.
At approximately 8:20 p.m. on May 9, 2004, Brian Thomes was observed by judicial marshals who passed by cell E-9 while moving other prisoners in the cell block. He appeared to be sleeping. Approximately five to ten minutes prior to the judicial marshals finding Brian Thomes hanging from his prison blanket which was wrapped around his neck and tied to his cell door, a prisoner in a nearby cell heard the sound of "paper ripping" coming from cell E-9. At approximately 8:27 p.m., Brian Thomes was found hanging from his cell door by his prison blanket. Judicial marshal services would not have given Brian Thomes a blanket had they been informed of the suicide risk that he presented. He would have been placed in the closest proximity to the control room possible and where the highest amount of judicial marshal traffic occurs. Brian Thomes was pronounced dead upon his arrival at Hartford Hospital at approximately 9:02 p.m. on May 9, 2004.
Additional facts will be provided as needed.
III DISCUSSION A Negligence
The plaintiffs allege that the personal injuries and losses, including death, sustained by the plaintiffs' decedent, Brian Thomes, were caused by the negligence and carelessness of the defendants, Officer Duong, Officer Rivera and the city of Hartford. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).
(I) Duty
As a threshold matter, it is necessary to determine whether, as a matter of law, the defendants owed the plaintiffs' decedent a duty of care to protect him from the harm that occurred as a result of his arrest.
"Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . .
"A simple conclusion that the harm to the plaintiff was foreseeable cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . [D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendants responsibility should extend to such results." (Citation omitted; internal quotation marks omitted.) Mazurek v. Great American Ins. Co., supra, 284 Conn. 29-30.
When a person is taken into custody by the police, that person is owed a duty of care. "Section 320 of the Restatement (Second) imposes a duty of care upon a person who takes custody of another person so as to deprive him of his normal powers of self-protection. As the comments to § 320 make clear, this rule is applicable to sheriffs, jailers, officials charged with the care of mentally impaired individuals, private schools and hospitals and public schools." Murdock v. Croughwell, 268 Conn. 559, 570-71, 848 A.2d 363 (2004), citing 2 Restatement (Second), Torts § 320, comment (a). "[T]hat law enforcement officers owe no general duty of care to those who have been arrested and incarcerated, but not convicted of any crime, is contrary to sound public policy." Dezort v. Hinsdale, 35 Ill.App.3d 703, 708-09, 342 N.E.2d 468 (1976).
The duty of care extends to persons in custody who are at risk of suicide. "In accordance with the general rule that a duty of reasonable care is owed by prison or jail authorities to a prisoner to keep him safe from unnecessary harm, the courts which have considered the question under annotation have generally recognized that if such authorities know or have reason to believe that the prisoner, unless forestalled, might do harm to himself or to others, reasonable care must be used by those authorities to assure that such harm does not occur.
"In determining whether, in cases involving actions for damages arising out of a prisoner's self-inflicted injuries or suicide, jail or prison authorities have executed their duty of reasonable care to keep a prisoner safe and free from harm, the courts have recognized that certain factors, such as the prisoner's mental state — whether he was sane or insane, severely depressed, psychotic, or evidencing other symptoms of mental disturbance — or his physical condition — whether he was drunk, and if so, whether he was in a completely helpless state — are to be taken into consideration . . .
"The above-stated general rules have been applied by the courts to individual cases involving actions for personal injuries or death suffered by a prisoner as a result of his own conscious self-destructive act, or as the result of an act performed by the prisoner while he was in an inebriated condition or otherwise mentally impaired so as not to realize the act's potential for harm. The results in these cases with respect to the ultimate liability of the defendant prison or jail authorities has depended upon the particular circumstances involved." Annot., 79 A.L.R.3d 1210, 1214-15, § 2[a] (1977).
In Schleidt v. State, Superior Court, judicial district of Middlesex, Docket No. 54205 (November 26, 1991, O'Connell, J.) ( 1991 Ct.Sup. 9770), the court decided the case of a person who committed suicide while in the custody of the Connecticut state police. During the booking process, "when [ Schleidt] removed his belt he said to Trooper Berry that he wasn't going to kill himself because he loved his daughter too much and he had too much to live for." Schleidt v. State, supra, 1991 Ct.Sup. 9772. The court held that: "Schleidt's comments to Trooper Berry on the subject of killing himself was a red flag that should have made Trooper Berry and other members of the State Police alert to the fact that suicide had obviously crossed the mind of Schleidt. The combination of Schleidt being an intoxicated prisoner in the jail cell at Troop F combined with his statement about killing himself should have alerted the State Police that he was at a high risk for suicide and should have required extremely close or constant supervision of him on the video monitors, and created a high duty of care which the police failed to meet. Schleidt was at the time intoxicated to a degree that would substantially impair his usual logical mental processes." Schleidt v. State, supra, 1991 Ct.Sup. 9774-75. The court found that "there was foreseeability of a jail suicide under these circumstances and that the Connecticut State Police as the jailers had an affirmative duty to protect the prisoner Schleidt." Id., 9775. The court found that "[t]he State Police were careless and negligent and breached the standard of care and duty required of them with regard to the custody of Schleidt." Id.
In the present case, on May 9, 2004, the defendants were engaged in the routine practice of arresting, booking and transferring custody of an arrestee to the judicial marshals for arraignment in court. Officer Wiebusch, Sergeant Bergenholtz and Sergeant Fago all testified that the Hartford police department had an obligation to protect those persons taken into custody and to provide them with the care they need. This case falls within a limited class of "special relationship" cases wherein an affirmative duty to protect has been recognized. See Aselton v. East Hartford, 277 Conn. 120, 133, 890 A.2d 1250 (2006). A special relationship existed because the plaintiffs' decedent was in the care or custody of the defendants. See Aselton v. East Hartford, supra, 277 Conn. 134-35 n. 7. The defendants had a duty to exercise ordinary diligence to keep an arrestee safe and free from harm. In performance of this duty, a police officer, having responsibility for an arrestee when he has knowledge of facts from which it might be concluded that the arrestee may harm himself or herself unless precautionary measures are taken, must use reasonable care to prevent such harm. See Thomas v. Williams, 105 Ga.App. 321, 327, 124 S.E.2d 409 (1962).
The court concludes that the defendants owed a duty of care to the plaintiffs' decedent because: (1) the harm was reasonably foreseeable; and (2) in determining whether the defendants' responsibility should extend to such results, the fundamental policy of the law weighs in favor of the conclusion that the defendants should be legally responsible under the circumstances. See Lodge v. Arett Sales Corp., 246 Conn. 563, 577, 717 A.2d 215 (1998).
(2) Breach
The plaintiffs allege that the defendants breached their duty by failing to communicate suicide information within the department and to the judicial marshals. "[A] fundamental premise of tort law [is] that before there can be liability, there must be a breach of a duty of care owed by the defendant to the plaintiff, which, in turn, requires that there be a special relationship between the plaintiff and the defendant." Gajewski v. Pavelo, 36 Conn.App. 601, 621, 652 A.2d 509 (1994), aff'd 236 Conn. 27, 670 A.2d 318 (1996), citing W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56. "Negligence is a breach of duty important to distinguish between the existence of a duty and the violation of that duty." (Citation omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988). The plaintiff must prove "a violation of a standard of care as a wrongful act . . ." Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004).
The policies, procedures and/or practices of the Hartford police department require police officers to recognize and protect persons at risk of suicide. In the Hartford police academy, police officers receive training regarding dealing with persons at risk of suicide. The ingestion of benzodiazepine is listed as an example of a "suicidal gesture" according to the training materials of the Hartford police department. The training materials also include information regarding risk factors for suicide. The policy of the Hartford police department that was taught in the police academy required communication of information between officers. The officer that applies for the arrest warrant is supposed to communicate with the arresting officer about what the arresting officer will encounter. In particular, any medical or suicide information known about an individual should be relayed and shared with other officers. Once a person is identified as a suicide risk that information should be given to the arresting officer. The suicide information would be made known to the arresting officer either by word of mouth or a note to the sergeant or to dispatch.
The department's policies, procedures and/or practices required the arresting officer to complete a field arrest form. The field arrest form has been used by the Hartford police department for approximately twenty years. It is to be completed by the arresting officer and is used as a charging sheet and should include name, vital statistics, address, date of birth, race, sex, the date, time and location of the arrest, and a list of the charges. The field arrest form provides the booking division with information of which they should be aware. Information for completing the field arrest form can be derived from interviewing the arrestee, and/or from police department sources.
The department's policies, procedures and/or practices required that booking be informed of violent tendencies, medical information and suicidal ideations. It was part of the policies, procedures and/or practices of the Hartford police department to list suicide information in the remarks/comments section of the field arrest form. Hartford police department policies, procedures and/or practices required inclusion of suicide information in the field arrest form to the extent it was known. Even suicidal tendencies that were evident in the past would have been noted. The suicide information known would typically have been written in the remarks/comments section of the field arrest form pursuant to proper procedures. At all relevant times, the field arrest form was part of the paperwork given to the judicial marshals by the booking division to convey information when the judicial marshals pick up arrestees. Suicide information would have been included in the remarks/comments section of the field arrest form and prominently noted with a "suicide stamp" on the field arrest form.
It was part of the policies, procedures and/or practices of the booking division to fill out a bright orange suicide form when suicide information was known by the Hartford police department. The suicide form would be filled out at booking, and usually not by the arresting officer. A bright orange suicide form would be given to the judicial marshals that pick up an arrestee to draw attention to the risk of suicide of an arrestee. It was the policy of the Hartford police department to give a suicide form to judicial marshal services when suicide information was known to the booking division.
The defendants' conduct violated the Hartford police department's policies, procedures and/or practices regarding persons at risk of suicide. The defendants had actual knowledge that the plaintiffs' decedent was suicidal or had suicidal tendencies. While at Saint Francis Hospital, Officer Duong and Sergeant Bergenholtz were informed that the plaintiffs' decedent was a suicide risk. The arrest warrant signed by Officer Duong, Sergeant Bergenholtz and Lieutenant Jobes included this information. Officer Duong, Sergeant Bergenholtz and Lieutenant Jobes failed to inform Officer Rivera or the booking division that the plaintiffs' decedent was a suicide risk. Officer Rivera failed to include suicide information on the field arrest form. The booking division was not informed of the suicide risk information and did not complete a suicide form. The field arrest form and the suicide form given to the judicial marshals by the booking division failed to convey suicide information to the judicial marshals when they picked up the plaintiffs' decedent.
As in Schleidt v. State, supra, Superior Court, Docket No. 54205, the suicide threats and impaired state of the plaintiffs' decedent were red flags that should have alerted the defendants to the risk of suicide. This combination should have alerted the defendants that the plaintiffs' decedent was at a high risk for suicide, thereby creating a high duty of care. The defendants had an affirmative duty to protect the plaintiffs' decedent. The defendants were under a duty of care to communicate the suicide information to each other and to notify judicial marshal services of the suicide risk. Under these circumstances, a jail suicide was foreseeable while the plaintiffs' decedent was in the custody of either the Hartford police department or judicial marshal services. The defendants were careless and negligent and breached the standard of care and duty required of them with regard to the plaintiffs' decedent.
The defendants' conduct fell below the legal standard established to protect others against unreasonable risk of harm. The defendants breached the duty of care by: (1) failing to communicate to Officer Rivera and the booking division that the plaintiffs' decedent was a suicide risk; (2) failing to include suicide information on the field arrest form; (3) failing to complete a suicide form; (4) failing to provide judicial marshal services with accurate and complete paperwork when transferring custody of the plaintiffs' decedent; and (5) failing to inform judicial marshal services that the plaintiffs' decedent was a suicide risk.
(3) Causation
The plaintiffs allege that the breach of the duty of care by the defendants was a substantial factor in bringing about the death of the plaintiffs' decedent. The defendants contend that they are not liable because any injury to the plaintiffs was caused by the acts or omissions of others, i.e., the judicial marshals, in that they negligently caused, allowed or permitted the death of the plaintiffs' decedent by failing to establish, implement and/or follow proper and adequate suicide-prevention precautions, and/or by failing to properly and adequately communicate about the plaintiffs' decedent with those who transferred custody of him to them.
The court must determine whether the death of the plaintiffs' decedent resulted from the defendants' breach of duty. "An essential element of any negligence action is the establishment of the defendant's conduct as a proximate cause of the plaintiff's injury . . . The causal relation between the defendant's wrongful conduct and the plaintiff's injuries must be established in order for the plaintiff to recover damages . . . In Connecticut, the test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct]. The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438-39, 528 A.2d 364 (1987).
In Schleidt v. State, supra, Superior Court, Docket No. 54205 ( 1991 Ct.Sup. 9770), after finding a breach of duty, the court considered whether that breach was the proximate cause of death of the plaintiff's decedent. Id., 9775. The court held that "where a foreseeable event results in harm to a person held in the custody of another and where the custodian's acts or omissions have increased the risk that harm of that general nature will occur, the custodian must, under Connecticut law assume the liability for injuries resulting." Id. 9775, citing Doe v. Manheimer, 212 Conn. 748, 563 A.2d 699 (1989), and Pisel v. Stamford Hospital, 180 Conn. 314, 430 A.2d 1 (1980).
At approximately 9:45 a.m. on May 9, 2004, judicial marshal services picked up the plaintiffs' decedent at the Hartford police department and brought him to the lock-up facility at 101 Lafayette Street. The judicial marshals responsible for transporting the plaintiffs' decedent were not given information about his prior suicide threats. The defendants failed to inform judicial marshal services by writing or by word of mouth that the plaintiffs' decedent was a suicide risk.
The policies and procedures of judicial marshal services provide: "Any prisoners who have been determined to be suicidal must be placed on a continuous watch, and such watch must be documented and initialed." The plaintiffs' decedent was not placed on continuous suicide watch by judicial marshal services, but rather received the standard suicide watch for the general population, which consisted of monitoring at fifteen minute intervals. If the defendants had provided judicial marshal services with the information that the plaintiffs' decedent was a suicide risk, he would have been placed on continuance watch status. As noted above, had the judicial marshals been informed of the suicide risk that the plaintiffs' decedent presented, they would not have given the plaintiffs' decedent a blanket. He would have been placed in the closest possible proximity to the control room, where the highest amount of judicial marshal traffic occurs.
By failing to communicate the suicide information, the defendants set in motion a chain of events that led to the untimely death of the plaintiffs' decedent. The defendants' acts or omissions increased the risk of harm. Their conduct was a substantial factor in bringing about the suicide of the plaintiffs' decedent. Under the circumstances, the defendants proximately caused the injuries of which the plaintiffs complain.
B Governmental Immunity
The plaintiffs allege that the Hartford police department's policies, procedures and/or practices give rise to a ministerial duty for which no governmental immunity applies. See Kolaniak v. Board of Education, 28 Conn.App. 277, 280-81, 610 A.2d 193 (1992). The defendants contend that they are not liable because the alleged acts or omissions, the arrest of the plaintiffs' decedent and his transport to the booking facility, required the exercise of judgment or discretion.
"The tort liability of a municipality has been codified in § 52-557n. Section 52-557n(a)(1) provides that `[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . .' Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by `negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.'" Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006).
"Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Id., 318. "[O]nce the duty owed is deemed to be public, liability attaches in two situations: (1) if the act complained of is ministerial; or (2) if one of the exceptions to the doctrine of governmental immunity applies." Houlihan v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 038357 (January 22, 1993, Jones, J.) ( 8 C.S.C.R. 264). "The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
"[I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality . . . [T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city . . . The deployment of officers is particularly a governmental function . . . We conclude that the general deployment of police officers is a discretionary governmental action as a matter of law." (Citations omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180. "The Superior Court has . . . determined that [t]he investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function." (Internal quotation marks omitted.) Escobales v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV 06 4009470 (May 5, 2006, Shapiro, J.) ( 41 Conn. L. Rptr. 351), quoting Skrobacz v. Sweeney, 49 Conn.Sup. 15, 32, 858 A.2d 899 (2003); see also Mikita v. Barre, Superior Court, judicial district of New Haven, Docket No. CV 99 0430564 (May 22, 2001, Munro, J.) (defendants' actions were discretionary because "the facts related to the misidentification and subsequent detainment of plaintiff as alleged in the complaint required, in some measure, an exercise of judgment by the individual police officers"); Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0147192 (January 2, 2001, D'Andrea, J.) ( 28 Conn. L. Rptr. 671, 674) ("acts or omissions of police officers in the exercise of their duties are discretionary in nature"); Elinsky v. Marlene, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0557659 (October 31, 1997, Hale, J.T.R.) (individual defendant's alleged actions were discretionary because arresting plaintiff, submitting false statements in affidavit in support of arrest warrant, and improperly interviewing witnesses and investigating "require, in some measure, an exercise of judgment by the individual municipal employees"); Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 88 253464 (June 4, 1993, Fuller J.) (specifically holding that an officer's decision to arrest is discretionary).
(1) Ministerial Duty
The court must determine whether the Hartford police department's policies, procedures and/or practices regarding persons in custody at risk of suicide give rise to a ministerial duty for which no governmental immunity applies.
In evaluating whether an act or omission of a municipal employee constitutes a ministerial duty, the courts have considered the following factors: (1) whether the duty is to be performed in a prescribed manner without the exercise of judgment or discretion; (2) whether the act is to be performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action; (3) whether the defendant is required by any a law, regulation, rule, policy or any other directive that prescribes the manner in which the act is to be performed; (4) whether the defendant's duty to adhere to the regulations is ministerial as a matter of public policy; (5) whether a directive or advice by a town attorney has transformed what was once perhaps a discretionary duty into a ministerial duty; (6) whether a statute imposes a mandatory duty; (7) whether the conduct was controlled by at least one statutory provision; and (8) the scope of the duty.
Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975).
Gauvin v. New Haven, 187 Conn. 180, 184-86, 445 A.2d 1 (1982).
Violano v. Fernandez, 280 Conn. 310, 323-24, 907 A.2d 1188 (2006); Kolaniak v. Board of Education, 28 Conn.App. 277, 278-82, 610 A.2d 193 (1992); Estate of Foster v. Branford, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 054010120 (January 30, 2007, Munroe, J.) ( 42 Conn. L. Rptr. 852).
Estate of Foster v. Branford, supra, 42 Conn. L. Rptr. 852, 854 n. 1.
Mullins v. Southington, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 97 047950 (June 24, 1998, Stengel, J.) ( 1998 Ct.Sup. 9138, 9141).
Wright v. Brown, supra, 167 Conn. 471-72.
Moran v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 04 0489728 (March 8, 2006, Silbert, J.) ( 2006 Ct.Sup. 4633, 4637-38).
Esposito v. Sapia, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV89 0103875 (July 1, 1993; Lewis, J.) ( 1993 Ct.Sup. 6493, 6496).
The relevant caselaw demonstrates that the courts have considered the particular circumstances of each case. In Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975), the court found that "the dog warden was charged under [General Statutes] § 22-358 with the duty of quarantining the dog for fourteen days once she found that the dog had bitten a person who was not upon the premises of the owner or keeper of the dog. While the determination of that state of facts involved the exercise of judgment, the subsequent duty to quarantine for fourteen days was mandatory and, therefore, ministerial." Id., 471-72. The court held: "Where the municipality through its agent or employee acts in the performance of a governmental duty, it has a limited immunity from liability . . . but when the act complained of is ministerial, the municipality is responsible for its negligent execution . . . `Ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted.) Id., 471.
The court in Gauvin v. New Haven, 187 Conn. 180, 445 A.2d 1 (1982), held: "Whether the acts complained of in operating a city park were governmental or ministerial is a factual question which depends upon the nature of the act complained of." Id., 186. "A municipality is immune from liability for the performance of governmental acts, as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Citations omitted.) CT Page 4309 Id., 184.
In Violano v. Fernandez, supra, 280 Conn. 310, the Supreme Court noted that the plaintiffs "failed to allege that there was any rule, policy, or directive that prescribed the manner in which [the defendant] was to secure the property. Rather, the complaint alleges only that [the defendant] exercised poor judgment in the manner in which he secured the building." Id., 324. On this basis, the court agreed with the Appellate Court's determination that "the complaint alleged conduct that was solely discretionary in nature, and, accordingly, that qualified governmental immunity applied to [the defendant's] alleged acts and omissions." Id.
In Kolaniak v. Board of Education, supra, 28 Conn.App. 277, the board of education had issued a bulletin to all custodians and maintenance personnel indicating that the walkways were to be inspected and kept clean on a daily basis. Id., 279. While leaving an evening adult education class, the plaintiff was injured when she slipped and fell on an accumulation of snow or ice on a walkway. Id., 278. The maintenance workers on duty could not recall putting down any sand or salt that night. Id., 279. The Appellate Court concluded that the clearing of snow and ice pursuant to the bulletin was a ministerial function that was not afforded the protection of governmental immunity. Id., 281-82. The court reasoned that: "[a] municipality's potential liability for its tortious acts is limited by the common law principle of governmental immunity . . . Government immunity, however, is not a blanket protection for all official acts. For example, a municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action . . . Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act . . .
"A determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor. In the present case, the board of education's bulletin to all custodians and maintenance personnel was clear — they were to keep the walkways clear of snow and ice. We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity." (Citations omitted; internal quotation marks omitted.) Id., 280-81.
The court in Estate of Foster v. Branford, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 05 4010120 (January 30, 2007, Munroe, J.) ( 42 Conn. L. Rptr. 852), found that while the decision to initiate a police pursuit is a discretionary decision and therefore afforded immunity, the manner that the police officer operated his vehicle is not necessarily a discretionary act. Id., 854. "The use of an audible warning device is not optional and must be used when a [police] pursuit is engaged, ergo it is a ministerial act." Id. "On the other hand, once in pursuit an officer is engaged in an inherently dangerous act. Therefore, as a matter of public policy, the duty to adhere to the regulations is ministerial in nature as a means of protecting the public." Id., 854 n. 1.
In Mullins v. Southington, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 97 047950 (June 24, 1998, Stengel, J.) ( 1998 Ct.Sup. 9138, 9141), the court found that a directive or advice by a town attorney to a public official to make citizen complaints available to the public transformed what was once perhaps a discretionary duty into a ministerial duty.
The court in Moran v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 04 0489728 (March 8, 2006, Silbert, J.) ( 2006 Ct.Sup. 4633), found that: "In these same counts, however, the plaintiff also specifically alleges, like the plaintiff in Kolaniak, that the defendants' conduct in regard to the pathway violated particular `policies directives,' i.e., the ADA and particular provisions of the state code. If the defendants' conduct was controlled by at least one of these provisions, it would involve a ministerial function." Id., 4637-38.
In Esposito v. Sapia, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0103875 (July 1, 1993, Lewis, J.) ( 1993 Ct.Sup. 6493), the court found issues of material fact regarding whether a public official had a duty to inspect school furniture and to make necessary repairs and whether the tasks were ministerial or discretionary in nature. "[T]he scope of an official's duties, and whether such duties are at the official's discretion or pursuant to a directive, are important in determining whether an act is discretionary or ministerial." Id., 6496.
Here, the plaintiffs allege that the defendants failed to properly discharge ministerial duties. The evidence demonstrated that the Hartford police department had policies, procedures and/or practices prescribing the manner in which the defendants were to act regarding persons at risk of suicide. While the decision to arrest is a discretionary act afforded immunity, the manner in which the police operate in the care of an arrestee in its custody is not necessarily a discretionary act. Specifically, the defendants had a duty to communicate information within the department and to the judicial marshals regarding Brian Thomes' suicide risk.
There are many different circumstances where a police officer has an affirmative duty to report or cause a report to be made regarding persons at risk. See General Statutes § 46a-11b (person with mental retardation); General Statutes § 17b-451 (elderly person); General Statutes § 17a-101a (child); General Statutes § 17b-407 (resident of a long-term care facility); General Statutes § 46b-150g(a) (repealed by Public Acts, Spec. Sess., June 2007, No. 07-4, § 123, effective January 1, 2010) (youth in crisis). As a matter of public policy, the duty to report or cause a report to be made that an arrestee is at risk of suicide flows logically from a police officer's sworn duty to protect the public.
The defendants were required to perform their duties in a prescribed manner and failed to do so. The plaintiffs proved that the acts or omissions which led to the injuries complained of were ministerial and not discretionary or supervisory. This is not a case where the defendants exercised poor judgment. The negligent acts in question did not involve the exercise of judgment. The court concludes that the defendants' acts were not discretionary acts but were ministerial acts not entitled to governmental immunity.
C Indemnification
General Statutes § 7-465 provides that a municipality is obligated to pay, on behalf of an employee, any sums for which the employee becomes liable while acting in the performance of his duties and within the scope of his employment. That section provides in relevant part: "Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . ." General Statutes § 7-465(a).
In Wu v. Fairfield, supra, 204 Conn. 435, the Supreme Court stated: "The plaintiff instituted this negligence action pursuant to General Statutes § 7-465, which establishes municipal liability for certain acts of employees. A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification . . . This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence . . . Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, supra, 204 Conn. 438-39.
At the time of the injury complained of, Officer Duong, Officer Rivera and the other officers involved were employees of the city of Hartford. They were acting in the performance of their duties and within the scope of their employment. They breached their duty of care owed to the plaintiffs' decedent by failing to communicate suicide information. The plaintiffs have proved individual negligence on the part of the employees and the city of Hartford's employment relationship with those individuals. The defendants' negligent acts were ministerial and not entitled to governmental immunity. Under the circumstances, the city of Hartford is liable for indemnification pursuant to § 7-465.
D Damages
As a result of the defendants' negligence, the plaintiffs suffered injuries and losses. The plaintiffs are entitled to an award of fair, just and reasonable damages. The court must determine the award necessary to compensate the plaintiffs for the damages resulting from their decedent's death. In determining the amount of damages, this Court has considered the following caselaw.
"To authorize a recovery . . . facts must exist and be shown by the evidence which affords a reasonable basis for measuring the [plaintiffs'] loss. The [plaintiffs have] the burden of proving the nature and extent of the loss . . . Mathematical exactitude in the proof of damages is often impossible, but the plaintiff[s] must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate . . . Proof of damages should be established with reasonable certainty and not speculatively and problematically . . . Damages may not be calculated based on a contingency or conjecture . . .
"In a wrongful death action, it is well established that damages are measured on the basis of the loss to the decedent had he lived . . ." (Citations omitted; internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 650, 904 A.2d 149 (2006).
"The rule for measuring damages resulting from death may then be briefly summarized as follows: It is that sum which would have compensated the deceased so far as money could do for the destruction of his capacity to carry on life's activities as he would have done had he not been killed, including the destruction of his earning capacity, for such time as he would probably have lived, but with due allowance for the effect which the ordinary vicissitudes of life might have had upon his continued enjoyment of those capacities and, as far as destruction of earning capacity is concerned, for the fact that a present payment will be made in lieu of sums which, had he lived, would have been received at periodic times in the future." Chase v. Fitzgerald, 132 Conn. 461, 469-70, 45 A.2d 789 (1946).
"In actions for injuries resulting in death, a plaintiff is entitled to `just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses.' General Statutes § 52-555. `Just damages' include (1) the value of the decedent's lost earning capacity less deductions for her necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of her capacity to carry on and enjoy life's activities in a way she would have done had she lived, and (3) compensation for conscious pain and suffering." (Internal quotation marks omitted.) Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 149 n. 12, 491 A.2d 389 (1985).
General Statutes § 52-555, entitled "Actions for injuries resulting in death," provides in relevant part: "(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of . . ."
"Damages for wrongful death, as such, are allowed as compensation for the destruction of the decedent's capacity to carry on life's activities, including his capacity to earn money, as he would have if he had not been killed . . . In the case of one who is gainfully employed, especially one who earns a relatively large income . . . the destruction of earning capacity may well be the principal element of recovery resulting from the death . . . But [the Supreme Court has] consistently pointed out that damages for wrongful death are not restricted to those arising from the mere destruction of earning capacity. Some damages are recoverable for death itself, even though instantaneous, without regard to earnings or earning capacity. (Citations omitted.) Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669-70, 136 A.2d 918 (1957).
"In reaching its conclusion as to the damages to be awarded, the court [is] entitled to believe the testimony most favorable to the plaintiff . . . [T]he trier must endeavor to make an intelligent estimate upon the various elements involved, including what the future course of any life, if continued, would have been." (Citations omitted; internal quotation marks omitted.) McCoy v. Raucci, 156 Conn. 115, 121-22, 239 A.2d 689 (1968).
"Suffice it to say that, except for the special expenses allowable under the statute, all these elements [of permissible damages in death cases] are, of necessity, imponderable and largely speculative. No one can place a definite value upon them, nor can one do more than conjecture as to what the future course of any life, if continued, would have been. At best, the trier must take the evidence and make an intelligent estimate . . .
"It serves no useful purpose to compare a verdict in one death case with those in others. No one life is like any other, and the damages for the destruction of one furnish no fixed standard for others. The question is one peculiarly within the province of the [fact finder] . . . Therefore the problem of estimating damages for the loss of . . . life with any exactness is, as in every such case . . . one beset with insurmountable difficulties. The law, nevertheless, undertakes to do justice as best it can, although of necessity crudely. The solution of the problem is left to the trier's good judgment." (Citations omitted; internal quotation marks omitted.) Fairbanks v. State, 143 Conn. 653, 659-61, 124 A.2d 893 (1956).
The plaintiffs' decedent was twenty-five years old when he committed suicide. The parties have stipulated that he had a life expectancy of 51.6 years. He faced many difficulties during his life. Learning disabilities, substance abuse and mental health issues took their toll on the plaintiffs' decedent. He never graduated from high school. At the time of his death, he was not working. He did not have any real work history. He was not in good health. His parents loved him and tried to help him to the best of their ability. They were hoping against hope that he was going to turn his life around. Weeks before his death, the plaintiffs' decedent expressed a desire to overcome his problems.
This court has reviewed the evidence and endeavored to do justice as best it can and make an intelligent estimate of damages. After due consideration, the court finds that the plaintiffs are entitled to $3,164.30 for funeral and burial expenses and $400,000 for non-economic damages.
IV CONCLUSION AND ORDER
For the above-stated reasons, the court enters judgment for the plaintiffs in the amount of $403,164.30.
SO ORDERED.